Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC) (24 January 2018)

Mlungwana and Others v S and Another (A431/15) [2018] ZAWCHC 3; [2018] 2 All SA 183 (WCC); 2018 (1) SACR 538 (WCC) (24 January 2018)

The court found that section 12(1)(a) of the Regulation of Gatherings Act, which criminalises convening a gathering of more than 15 people without prior notice, constitutes a limitation of the right to peaceful assembly under section 17 of the Constitution. The limitation is not reasonable or justifiable in an open and democratic society, as the criminal sanction is disproportionate to the legitimate purpose of regulating gatherings and facilitating police planning. The effect of a criminal conviction is severe and enduring, especially for vulnerable communities, and deters the exercise of constitutional rights. Less restrictive means, such as administrative fines or civil liability,...

Citation
[2018] ZAWCHC 3
Parties
Appellant: Phumeza Mlungwana; Appellant: Xoliswa Mbadisa; Appellant: Luvo Mankqa; Appellant: Nomhle Maci; Appellant: Zingisa Mrwebi; Appellant: Mlondolozi Sinuku; Appellant: Vuyolwethu Sinuku; Appellant: Ezethu Sebezo; Appellant: Nolulamo Jara; Appellant: Abdurrazack Achmat; Respondent: The State; Respondent: Minister of Police
Court
Western Cape High Court, Cape Town
Jurisdiction
South Africa
Judgment Date
24 January 2018
Case Number
A431/15
Procedural Posture
Criminal Appeal / Appeal Against Conviction and Constitutional Challenge
Outcome
Appeal upheld; convictions set aside; section 12(1)(a) of the Regulation of Gatherings Act declared unconstitutional to the extent that it criminalises convening a gathering of more than 15 people solely for lack of notice.
Judges
Ndita, Magona
Legal Topics
Freedom of Assembly, Regulation of Gatherings Act, Criminalisation of Peaceful Protest, Bill of Rights Limitation, Constitutional Invalidity, Notice Requirement
Constitutional Law Criminal Law Freedom of Assembly Regulation of Gatherings Act Criminalisation of Peaceful Protest Bill of Rights Limitation Constitutional Invalidity Notice Requirement

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Parties

Phumeza Mlungwana

Appellant

Xoliswa Mbadisa

Appellant

Luvo Mankqa

Appellant

Nomhle Maci

Appellant

Zingisa Mrwebi

Appellant

Mlondolozi Sinuku

Appellant

Vuyolwethu Sinuku

Appellant

Ezethu Sebezo

Appellant

Nolulamo Jara

Appellant

Abdurrazack Achmat

Appellant

The State

Respondent

Minister of Police

Respondent

Procedural Posture

Criminal Appeal / Appeal Against Conviction and Constitutional Challenge

Legal Issues

  1. 1 Does section 12(1)(a) of the Regulation of Gatherings Act criminalising convening a gathering without notice unjustifiably limit the right to peaceful assembly under section 17 of the Constitution?
  2. 2 Is the limitation imposed by section 12(1)(a) reasonable and justifiable in an open and democratic society?
  3. 3 Are there less restrictive means to achieve the legitimate purpose of regulating gatherings without resorting to criminal sanctions?

Ratio Decidendi

The court found that section 12(1)(a) of the Regulation of Gatherings Act, which criminalises convening a gathering of more than 15 people without prior notice, constitutes a limitation of the right to peaceful assembly under section 17 of the Constitution. The limitation is not reasonable or justifiable in an open and democratic society, as the criminal sanction is disproportionate to the legitimate purpose of regulating gatherings and facilitating police planning. The effect of a criminal conviction is severe and enduring, especially for vulnerable communities, and deters the exercise of constitutional rights. Less restrictive means, such as administrative fines or civil liability,...

Court Disposition

Appeal upheld; convictions set aside; section 12(1)(a) of the Regulation of Gatherings Act declared unconstitutional to the extent that it criminalises convening a gathering of more than 15 people solely for lack of notice.

Orders

  • The appellants' appeal against conviction is upheld and the convictions are set aside.
  • Section 12(1)(a) of the Regulation of Gatherings Act is declared unconstitutional.